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Trump Administration Announces Wind-Down of DACA

On September 5, 2017, the Administration announced a phase out of the Deferred Action for childhood Arrivals (DACA) program, ending the program as of March 5, 2018. Trump and Jeff Sessions (the Attorney General) made the initial announcement, soon followed by an implementing Memorandum from USCIS Acting Secretary Elaine C. Duke. The elimination of the program will impact almost 800,000 individuals who have lived almost their entire lives in the US. The first of these would become subject to removal proceedings beginning March 8, 2018.

This Obama-era program was implemented in 2012 by Executive Order, and sought to use the existing regulatory “Deferred Action” (forbearance from removal) framework to grant a measure of safety to so-called “Dreamers” – young people brought to the US without documentation as minors, who could not themselves be said to have broken any immigration laws as adults beyond physically remaining in the US past their 18th birthday. The “Dreamers” term comes from the “Development, Relief, and Education for Alien Minors” Act – an often-introduced congressional bill seeking to establish the same protections which congress had never managed to pass…leading to the Obama Executive Order to establish some minimal protection.

The DACA program allowed not only a reprieve from the threat of removal, but also for the DACA recipient to obtain both an Employment Authorization Document (“EAD”) and a Parole document – all under the existing Deferred Action regulations.

Not only could such individuals then lawfully work and pursue higher education in the US, the Parole document permitted something referred to as the “DACAbelly” strategy. The Arrabally-Yerrabelly cases (hence the name) permitted travel and reentry on a Parole to constitute a lawful entry for purposes of Adjustment of Status to Permanent Residence, without triggering a reentry bar and so the need for a waiver for which many wouldn’t qualify. A DACA recipient with parole who had been brought in without inspection - and so could not adjust status in the US even based on marriage to a US citizen - could use a DACA parole to reenter. That reentry could then form the basis of such a marriage-based Adjustment of Status – an extremely beneficial tool for the immigration practitioner and a lifeline for many DACA-eligible young people with no other available pathway to long-term lawful status.

The very limited good news from the announcement is that this isn’t a complete and immediate elimination of the program for individuals who already have DACA eligibility or who had already applied for initial eligibility as of the date of the USCIS implementing guidance on September 5, 2017. Renewal filings as well as associated Employment Authorization applications will continue to be adjudicated is received by October 5, 2017.

But, this is otherwise entirely bad news for Dreamers:

  • No further new DACA applications will be considered after the September 5, 2017 date of the announcement
  • No further renewal applications or associated EAD applications will be processed after October 5, 2017.
  • Effective immediately, no further Parole applications will be approved – even currently pending parole applications will be administratively closed (and the fees, supposedly, refunded). Existing Paroles remain valid until their stated expiration. However, the USCIS guidance memo, while acknowledging the ongoing validity of unexpired previously granted DACA paroles, makes a thinly-veiled threat that “CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.” This kills the DACABelly strategy discussed above to create a lawful entry for purposes of Adjustment of Status.

While the pronouncements from the administration imply that they want congress to pass a law to deal with the issue and that the administration may reconsider the issue if this doesn’t happen, neither action appears likely. Congress has consistently failed to pass the DREAM Act over many, many years of attempt. Further, it’s hard to envision Trump alienating his base by withdrawing his termination of the DACA program.